INFOPRO DIGITAL SERVICES LIMITED (“INFOPRO”) STANDARD TERMS AND CONDITIONS FOR THE SALE OF THIRD PARTY DIGITAL ADVERTISING
All advertisements accepted for publication by Infopro in any of its online products are accepted subject to these terms and conditions. Any other conditions proposed by the Customer shall be void unless accepted by Infopro in writing.
These terms and conditions, in conjunction with the relevant IO comprise the agreement between Infopro and the Customer (“Agreement”).
3rd Party Ad Server means a third party providing advertising of the Advertiser’s products and services that are identical or similar to those that are subject to the relevant IO;
Ads means advertising communicated to end users by electronic distribution systems;
Advertiser means the party whose products and/or services are to be advertised pursuant to the Deliverables;
Advertising Materials means advertising copy, including, without limitation, artwork, text and active URLs.
Affiliate means in respect of any person to whom the term Affiliate refers a company, corporation or partnership or other business entity (“entity”) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose “control” means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes.
Agency means an advertising agency representing the Advertiser;
Campaign Period means the period of time during which the campaign subject to the relevant IO is to be operative;
Customer means the party purchasing the right to advertise pursuant to the Deliverables;
Deliverables means the type and amount of the service required including, without limitation, page impressions, clicks or other actions specified and agreed by the parties irrespective of the delivery systems and platforms to which they are directed.
IAB means the Internet Advertising Bureau
IO means a campaign insertion order specifying the terms on which Infopro will provide the Deliverables;
Licensor means Infopro Digital Limited, whose registered office is at Haymarket House, 28-29 Haymarket, London SW1Y 4RX or such parent or subsidiary, in which the proprietary rights to the relevant Sites vest.
Overdelivery means the delivery by Infopro of a greater volume of Deliverables than that specified in the IO where the incremental Deliverables accrue a liability by the Customer to Infopro and ‘Overdeliver’ shall be construed accordingly;
Personal Data has the definition applied to it in the Data Protection Act 1998
Policies means Infopro’s editorial policies from time to time including without limitation privacy policies, user experience policies, policies regarding consistency with Infopro’s public image, community standards regarding obscenity or indecency , other editorial or advertising policies;
Site(s) means those websites owned or controlled by Infopro or the Licensor.
Technical Specifications means the delivery format of the Advertising Materials required to ensure that the visual appearance of the Ads as set out in the IO is accessible and capable of view on the Sites;
Total Cost means all sums under the terms of the IO exclusive of VAT, which shall be paid without set-off.
1. INSERTION ORDERS
1.1. Parties may negotiate IOs under which Infopro will deliver Ads provided by the Customer on the Site for the benefit of the Advertiser.
1.2. In each case, Infopro shall provide the Customer an IO which shall specify:
(a) the Deliverables;
(b) the price(s);
(c) the maximum expense the Customer wishes to incur pursuant to the IO (if applicable);
(d) the start and end dates of the campaign;
(e) the identity of and contact information for any 3rd Party Ad Server, if applicable.
(f) any special Ad delivery scheduling and/or Ad placement requirements; and
(g) editorial adjacency requirements, if any; and
(h) Technical Specifications.
1.3. Both parties must agree in writing to a revision of an IO previously accepted.
2. AD PLACEMENT AND POSITIONING
2.1. Infopro will use reasonable endeavours to display/transmit the Advertising copy during the Campaign Period in accordance with the terms of the IO.
2.2. If Advertising Copy is not transmitted/displayed in accordance with the agreed specifications set out in the IO within the Campaign Period for reasons other than the default of the Customer, Infopro will use reasonable endeavours to comply with those specifications within one month of the end of the Campaign Period. The Customer will be entitled to an appropriate pro-rata rebate of the Total Cost based on the number of impressions actually transmitted after the additional one month period.
2.3. Infopro will provide to the Customer within 5 business days of acceptance of an IO revised Technical Specifications, as agreed upon by the parties. If Infopro changes such Technical Specifications after that five-business day period it will allow the Customer to suspend (without altering the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either:
(a) allow the Customer to send revised Advertising Materials to Infopro; or
(b) allow Infopro to resize the Ad at Infopro’s cost, and with final creative approval of Customer, within a reasonable time period to fulfil the guaranteed levels of the IO; or
(c) accept a comparable replacement; or
(d) if the parties are unable to negotiate an alternate or comparable replacement in good faith within 5 business days, immediately cancel the remainder of the IO for the affected Ad without penalty.
2.4. In the event that Infopro fails to comply with the editorial adjacency requirements set out in the IO, the Customer shall notify Infopro of the same in writing, whereupon Infopro shall use its reasonable endeavours to ensure that the Ad becomes compliant with the relevant requirements within 3 business days of such notification.
2.5. Infopro shall deliver the relevant campaign in accordance with the dates specified in the IO. Infopro shall be responsible for compensating the Customer in respect of under delivery in excess of five (5) percent of the total booking (as reported by 3rd Party Ad Servers) set out in the IO.
2.6. In the event that Advertising Copy is not transmitted/displayed in accordance with the agreed specifications set out in the IO within the Campaign Period as a result of the default of the Customer, Infopro reserves the right to make additional charges in respect of the period of delay prior to its receipt of Advertising Copy complying fully with the agreed specifications of the IO.
3. PAYMENT AND PAYMENT LIABILITY
3.1. Infopro shall render invoices to the Customer for all sums due to Infopro pursuant to this Agreement at intervals of not more than one calendar month, the first such invoice to be rendered within one calendar month of acceptance of the IO. The Customer will be responsible for payment of VAT and/or any other applicable sales tax.
3.2. The Customer shall settle all invoices in full within 30 days. If the Customer is in default of payment by the due date Infopro, shall without prejudice to its other rights, be entitled to refuse to transmit the Advertising Copy and Infopro’s obligations generally will be reduced pro-rata to the delay in payment including, without limitation, the number of guaranteed impressions or plays obliged to be transmitted/displayed, without affecting the Customer’s financial responsibility for all impressions and plays ordered and inventory reserved.
3.3. The existence of a valid query on any individual item in an invoice will only affect the due date of payment of that individual item. The Customer must notify Infopro of any such query within seven days from the date of the invoice after which Infopro will not agree to amend the terms of the relevant invoice.
3.4. The Customer may not set off any payment due in an invoice against liabilities of Infopro.
3.5. For the avoidance of doubt, any discounts or rebates offered by Infopro shall only be available in respect of the campaign specified in the IO and shall not be available to any Affiliate of the Customer.
3.6. For the avoidance of doubt, where the Advertising Agency is the Customer, it is contracting as principal in all respects and as such will be personally liable for the payment of the Total Cost and for all other obligations under this Agreement.
3.7. Should an Agency fail to make payment within the deadline stipulated in the relevant invoice, Infopro reserves the right to inform the Agency’s client of such default.
3.8. All late payments shall be subject to compensation and interest pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
3.9. No credits or set-offs in respect of an invoice (or part thereof) shall be accepted by Infopro unless it is agreed within 12 months of the date thereof.
If the Customer wishes to postpone the Campaign Period Infopro shall consider such request in good faith but shall have no obligation to consent to such postponement. Any acceptance of such postponement shall require immediate pre-payment of the Total Cost less any payments previously made.
5. CANCELLATION AND REVISION
5.1. At any time, the Customer may cancel the IO with 30 days prior written notice, without penalty. For clarity and by way of example, if the Customer cancels the IO 15 days prior to the serving of the first impression, the Customer will only be liable to pay for the Deliverables provided during the first 15 days after the start date for the services set out in the IO.
5.2. In the event that a Customer seeks to revise an IO the Customer must provide a written request 30 days prior to the intended date of the requested revision. In the event that Infopro accepts such request (which it may accept or reject in its absolute discretion), billable rates will automatically revert to the appropriate published rate (the ‘ratecard’) for the revised impressions or such other rate as Infopro shall advise the Customer.
Infopro may terminate an IO at any time if the Customer is in material breach of its obligations hereunder that is not remedied within 14 days after the date of Infopro’s written notice, except as otherwise stated in this Agreement with regard to specific breaches.
7. BONUS IMPRESSIONS
7.1. Where the Customer engages a 3rd Party Ad Server, Infopro will not Overdeliver without prior written consent from the Customer.
7.2. Permanent or exclusive placements shall run for the period of time specified in the IO regardless of Over-delivery, unless the IO places a limit on the volume of impressions attributable to 3rd Party Ad server activity.
7.3. The Advertiser will not be liable to Infopro for any additional Ads in excess of any limits set out in the IO. If a 3rd Party Ad Server is being used and the Advertiser notifies Infopro that the guaranteed or capped levels stated in the IO have been reached, Infopro will use reasonable endeavours to suspend delivery within two business days thereafter.
8. FORCE MAJEURE
8.1. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labour disputes. In the event that Infopro suffers such a delay or default, Infopro shall use its reasonable endeavours within five business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or other arrangement is reasonably acceptable to the Customer, Infopro shall allow the Customer a pro rata reduction in the payment due pursuant to the relevant IO.
8.2. To the extent that a force majeure has continued for 10 business days, Infopro or Customer has the right to cancel the remainder of the IO without penalty.
9. ADVERTISING MATERIALS
9.1. The Customer shall submit Advertising Materials at least 5 business days before the commencement of the Campaign Period in accordance with Infopro’s prevailing advertising criteria or specifications (including content limitations, agreed Technical Specifications, Policies, and material due dates) in accordance with clause 2.3.
9.2. If Advertising Materials are submitted later than 12 noon on the day before the relevant campaign is due to begin Infopro reserves the right to make a pro rata reduction in the volume of impressions comprising the Deliverables and to make charges further to those specified in the relevant IO.
9.3. Infopro reserves the right within its discretion to reject or remove from its Site(s) any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in Infopro’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Infopro reserves the right within its discretion to reject or remove from its Site(s) any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon Infopro or any of its Affiliates.
9.4. If Advertising Materials provided by the Customer are damaged, not to Infopro’s specifications, or otherwise unacceptable, Infopro will use reasonable endeavours to notify the Customer within 5 business days of its receipt of such Advertising Materials.
9.5. Infopro shall at all times retain all right, title and interest in any intellectual property rights in Advertising copy produced on behalf of the Customer by Infopro.
9.6. The parties will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms and Conditions or an IO without the other’s prior written approval.
10.1. The Customer hereby warrants, represents and undertakes to Infopro that:
(a) In respect of the Advertising Copy or any part thereof supplied by the Customer or any other material provided to Infopro by the Customer (including the Customer’s and/or Advertiser’s brand) it will not infringe the copyright, trade mark or any other intellectual property or other proprietary rights or be defamatory of any third party or obscene, indecent, offensive or liable to incite racial hatred and their publication by Infopro will not give rise to a right for any third party to claim payment and/or damages;
(b) The Customer and/or the Advertiser has obtained and paid for all necessary consents, licences, and permissions to advertise on the Site;
(c) The Customer has taken or will take all necessary steps to ensure that all advertising it provides for display on the Site will not be illegal or actionable for any reason in any territory and shall comply with all applicable legislation, rules and regulations including for the avoidance of doubt any applicable advertising and/or relevant financial services standards and codes;
(d) If any Advertising Copy contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or copy by which any living person is or can be readily identified, the Customer warrants that the Customer and/or the Advertiser has obtained the authority of such living person to make use of such name, representation and/or copy.
(e) The Advertising Copy contains no viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
(f) The Customer is solely responsible for fulfilling and dealing with any orders or enquiries relating to the goods, services or promotion to which the Advertising Copy relates and will indemnify and hold Infopro harmless accordingly.
(g) it will comply fully with the requirements of the Data Protection Act 1998 (as amended from time to time) and the Bribery Act 2010
10.2. Infopro warrants that it is authorized by the Licensor to enter into agreements subject to these terms and conditions.
11.1. The Customer will fully indemnify and keep Infopro and its directors, officers and employees fully indemnified against all actions, proceedings, costs (including legal fees), damages, expenses, fines, losses (including loss of profits) penalties, claims, demands and liabilities directly or indirectly suffered or incurred by Infopro (or its directors, officers or employees) howsoever arising from any breach of the Customer’s warranties, obligations or agreements contained herein.
11.2. The Customer will provide Infopro with full co-operation in defending any claim or complaint concerning the Advertising Copy including, but not limited to, providing evidence in support of advertising claims and copies of documentation evidencing the clearance of relevant underlying third party proprietary rights.
11.3. The Customer acknowledges and confirms that Infopro has not provided it with any guarantees concerning reach of the site or target audience. Any statistics related to the site provided to the Customer are provided as an estimate based on prevailing available research only and may not be relied on by the Customer as a representation or otherwise.
12. LIMITATION OF LIABILITY
12.1. Infopro shall not be liable to the Customer or the Advertiser, under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, for any loss of profit, goodwill, business opportunity, anticipated saving or any type of special, indirect or consequential loss or damage.
12.2. Subject to Clause 12.3 below, Infopro’s entire liability (if any) to the Customer and/or Advertiser, under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall be limited to the amount actually paid by the Customer to Infopro.
12.3. Neither party’s liability to the other shall be excluded or limited by the provisions of this Agreement, save to the extent permitted by law in respect of:
(a) death or personal injury resulting from the negligence of itself, its servants or agents;
(b) fraud; or
(c) any other liability the exclusion of which is prohibited or limited by law,
13. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
13.1. Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary.
13.2. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
13.3. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which:
(a) was previously known to a party;
(b) was or becomes generally available to the public through no fault of the receiving party (“Recipient”);
(c) was rightfully in the Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”);
(d) was developed by employees or agents of the Recipient independently of and without reference to any information communicated to Recipient by Discloser; or
(e) was communicated by the Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other regulatory body, as otherwise required by law or the rules of any applicable regulator.
13.4. Infopro and the Customer shall comply with their respective privacy policies from time to time.
13.5. The Customer shall not do, or attempt to do, any of the following without the prior written consent of Infopro:
(c) collect or use any data regarding the Sites, except that the Agency and Advertiser may use anonymous statistical data regarding a campaign that is gathered during delivery or tracking of Ads pursuant to the applicable IO (e.g., number of impressions or interactions), provided that such data does not contain or comprise any Personal Data, and does not identify or allow identification of Infopro, the Sites, any brand, content, context, or users of the Sites as such, and provided further that if such data is to be shared with any third party, such data shall not include or be combined with any details of the relevant campaign (e.g. pricing information, description of Ads activity, placement information, and any targeting information), any Personal Data, or any Confidential Information of Infopro; or
(d) use any data obtained from Infopro, the Sites, or users of the Sites, to retarget any user of the Sites on any other website or to create or build a non-public profile of that user for purposes other than the performance of the relevant IO.
14. TAX EVASION FACILITATION PREVENTION
14.1. For the purposes of this Clause 14:
(a) the expressions ‘Prevention Procedures’, ‘UK Tax Evasion Offence’ and ‘Foreign Tax Evasion Offence’ will be construed in accordance with Part 3 of the Criminal Finances Act 2017 (‘CFA 2017’) and guidance published under it;
(b) Corporate Failure to Prevent Offence means an offence under section 45 and/or section 46 of CFA 2017 and any other applicable United Kingdom laws, legislation, statutory instruments and regulations in relation to preventing the facilitation of tax evasion and any similar or equivalent laws in any other relevant jurisdiction;
14.2. The Advertiser and Agency will ensure that neither will by any act or omission commit, or cause, facilitate or contribute to the commission by any person including Infopro, of a:
(a) Corporate Failure to Prevent Offence;
(b) UK Tax Evasion Offence; or
(c) Foreign Tax Evasion Offence
in connection with the performance of the Services and this Agreement.
14.3. The Advertiser and Agency will not solicit or engage with or take steps to solicit or engage with any person associated with Infopro to facilitate the commission of a UK Tax Evasion Offence or a Foreign Tax Evasion Offence in connection with the provision of the Deliverables and this Agreement.
14.4. The Advertiser and Agency will pay, in full and in a timely manner, all taxes due and payable relating to all monies, remuneration, profit and value received or payable by either (as the case may be) in connection with the the provision of the Deliverables and this Agreement.
14.5. Without prejudice to Clause 14.2, the Advertiser and Agency shall comply with Infopro’s Prevention Procedures as notified to them from time to time.
14.6. The Advertiser warrants and represents that it has not:
(a) been investigated in connection with, or charged with having committed or facilitated the commission of any UK Tax Evasion Offence or any Foreign Tax Evasion Offence;
(b) received any court orders, warrants or oral or written notices from a government prosecuting authority concerning any actual or alleged violation by it of any UK Tax Evasion Offence or any Foreign Tax Evasion Offence; or
(c) received any report (including a report from your auditors or any other person) or discovered any evidence suggesting that it has committed or facilitated the commission of any UK Tax Evasion Offence or any Foreign Tax Evasion Offence.
14.7. The Advertiser shall immediately notify Infopro as soon as it becomes aware of any allegation, investigation, evidence or report relating to a breach or possible breach of any of the requirements in this Clause 14.
15.1. The Customer may not resell, assign or transfer any of its rights or obligations hereunder.
15.2. All terms and provisions of these Terms and Conditions and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees (as applicable), successors and assigns (as applicable).
15.3. These Terms and Conditions and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
15.4. In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail.
15.5. These Terms and Conditions and the relevant IOs to which they relate shall be governed by and construed in accordance with the laws of England and Wales, the courts of which shall have exclusive jurisdiction in connection with any dispute arising in respect of its terms, formation or construction (including non-contractual disputes).
15.6. No modification of these Terms and Conditions or any IO shall be binding unless in writing by both parties.
15.7. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect.
15.8. All rights and remedies hereunder are cumulative.
15.9. Any notice required to be delivered hereunder shall be delivered three days after deposit in the Royal Mail, (recorded delivery), one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Infopro and the Customer shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Customer shall be sent to the address specified on the IO.
15.10. Clauses 3, 9, 10, 11, 12, and 15 shall survive termination or expiry of this Agreement. On expiry or termination, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags.
15.11. This Agreement may be executed by electronic signature. Each of the parties waives any and all rights to dispute the validity, legality or enforceability of such method of execution as evidence of the existence of legal relations pursuant to the Agreement for the purposes of proceedings issued in respect of any of its terms.